Catch 22: “If You’re Moving Dirt, You Need to Control Your Dust” (But Don’t Use Potable Water!)
Returning from an Oregon vacation this past Summer along I-5, I found frequent reminders of the extraordinary drought conditions prevailing across California. A grey smoky gloom blanketed the California-Oregon border from Ashland to Weed from at least five wildfires. The prediction of rains in the north state was more curse than blessing as lightning threatened to touch off tender-dry fuel in the forests and start more fires. Farmers tilling fields produced massive dust clouds. And under the I-5 bridge along the Sacramento River arm of Lake Shasta, the lake had receded to the original streambed.
On NOAA’s Palmer Drought Severity Index, nearly all of California is listed as in a condition of extreme or severe drought, and the Governor has issued a Proclamation of Continued State of Emergency requiring water conservation measures affecting all California residents. Indeed, early August news reports indicate that hopes of relief from an El Nĩno year are waning. The State Water Resources Control Board’s Emergency Regulation No. 2014 issued July 15 mandates action to reduce water use and require larger water suppliers to activate their Water Shortage Contingency Plan. The emergency regulation will remain in effect until April 25, 2015 unless extended due to ongoing drought conditions.
I had been working earlier in the year on a fugitive dust matter in the North Coast and was curious to find out what drought restrictions would mean for the use of water for dust suppression on construction sites and particularly for enforcement of permit requirements and fugitive dust controls under local air board rules. I saw that almost as soon as the State Board issued its emergency regulation, the City of Vallejo reminded residents and businesses that the Municipal Code prohibits potable water use for dust control and street sweeping where non-potable or recycled water is available. The San Francisco Public Works Code also restricts the use of potable water for dust suppression unless permission is obtained from the City Water Department or the Director of Public Works issues rules allowing an exemption for small construction or demolition projects that commonly consume less than approximately 500 gallons of water per day. Caltrans issued a Water Conservation Guidance on May 30, 2014 saying, “Water conservation must be addressed on all highway construction projects based on the severity of the water shortage” and requiring inclusion of specifications that address water conservation in contracts, including specifications addressing the use of water as a dust palliative.
Not much yet has been said by local air boards about enforcement policy under fugitive dust rules and permits in view of pressures to reduce water usage, but I think that Placer County’s recent Drought Compliance and Enforcement Policy R1-04-04-2014 is likely to represent the prevailing practice. The policy says:
The District will continue to enforce all air pollution laws, regulations, and permit conditions during a drought. However, it is recognized that businesses and members of the public may be placed in situations where they are required to comply with conflicting requirements of water conservation and air pollution control. Accordingly, in addressing air pollution violations where the reduced use of water may have caused or worsened an air pollution violation, the District will take into consideration water agency restrictions on water availability as well as the effects of both mandated and voluntary water conservation measures.
For construction activities subject to Rule 228, Fugitive Dust, the District will continue to evaluate compliance with 40% opacity and dust crossing property boundary limitations, as well as other rule and dust control plan requirements. Violations will be recognized with the issuance of a Notice of Violation, and a monetary penalty may be sought as part of the civil settlement. In determining the severity of a violation, the District considers whether “all reasonable measures” have been taken. In a drought situation, the District will include as a consideration as a possible mitigating circumstance whether the violation was caused by, or worsened by, water conservation practices.
The enforcement policy places particular emphasis dust suppression where asbestos dust may be generated, saying that “In the case where construction activities are in an area where naturally-occurring asbestos (NOA) is known to be present, or is likely to be present, adherence to applicable District and state regulations and Asbestos Dust Mitigation Plans (ADMPs), including the application of water to the extent necessary to suppress all dust, is required without exception.
The point to be emphasized is that the enforcement policy states firmly that, “voluntary water conservation will not take precedence over preventing or mitigating direct dust impacts on the public, or areas where the public may be present.” All reasonable measures must be exercised by the builder to eliminate fugitive dust according to the enforcement policy, and “The failure to prevent nuisance impacts of dust upon the public by any and all means necessary, including cessation of operations, will result in more severe enforcement consequences.”
Shortly after Placer County’s action, the South Coast Air Quality Management District (SCAQMD) approved on June 6 a Drought Management and Water Conservation Plan that includes a number of measures to reduce reliance on water for dust control. The plan included authority for the Executive Officer to exercise “discretion to surpass certain operating limits set for in SCAQMD rules and regulations or permit conditions” based on emergency provisions in SCAQMD Rule 118. It also included “promoting the use of water-sparing alternatives to dust controls, such as:
- Paving unpaved roadways and using vacuum sweepers instead of water to remove dust from paved areas.
- Increasing reliance on non-toxic chemical dust suppressants to stabilize soils.
- Increasing use of physical/mechanical barriers to contain or limit transport of fugitive dust.
The San Joaquin Valley Air District’s Governing Board has directed its staff “to work with affected agricultural operations to promote the use of currently available, less water-intensive measures to comply with the District’s Conservation Management Practices (CMP) regulations, to develop additional dust-control measures, if necessary, and to work with the agricultural community to streamline methods to revise existing CMP plans.” Its rules and control measures for dust management at construction sites remain unchanged at present.
It seems evident that drought-based water restrictions will not be an excuse for ignoring dust management practices on construction sites. To the contrary, the drought so increases the problem of fugitive dust from numerous sources that enforcement could be given special attention. The new “best available control measures” may be creative steps that minimize the use of water without compromising compliance.
Like the Placer County Drought Compliance and Enforcement, the SCAQMD has not authorized any broad relief from its rules or permit requirements for dust control on construction projects.
California Construction Law Blog | Nomos LLP 
One Response to “Catch 22: “If You’re Moving Dirt, You Need to Control Your Dust” (But Don’t Use Potable Water!)”
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